New Connections

Kimani Paul-Emile, JD, PhD

Kimani

Paul-Emile

JD, PhD

I wanted to do social justice work and was awed by what could be accomplished through the law.

“I wanted to do social justice work and was awed by what could be accomplished through the law.”

Kimani Paul-Emile knew she wanted to become a lawyer in high school after she saw the civil rights documentary Eyes on the Prize. “I wanted to do social justice work and was awed by what could be accomplished through the law,” she said. After completing college at Brown University, Kimani attended Georgetown Law Center and went on to a post-graduate fellowship at the Center for Constitutional Rights (CCR).

As an African American woman and the daughter of immigrants, Kimani drew on her background in her work at CCR. Representing immigrant women who worked in New York City sweatshops, she provided direct legal services, engaged in impact litigation, and spearheaded public education campaigns.

While at CCR, Kimani also worked on who were being prosecuted under child endangerment laws because they were addicted to drugs. The women were incarcerated during their pregnancies, shackled to hospital beds as they gave birth, and immediately separated from their babies afterward. The mothers were sent back to prison while the babies were given to foster homes or other family members. Charleston lacked drug treatment facilities equipped to meet the needs of low-income pregnant women and new mothers.

“All but one of the women targeted under the policy were black and it applied only to cocaine, so other women and those addicted to cigarettes or alcohol were not subject to the harsh policy,” Kimani said.

After several years at the Center for Constitutional Rights, and then the Brennan Center for Justice as an associate counsel, Kimani looked for a change of direction. “I had become disillusioned with the law, particularly its ability to bring about the structural changes necessary to create meaningful race and gender equality,” Kimani explained. “I was frustrated because I felt at times that the law was as much the problem as the solution, so I decided to go back to school in order to step back from the practice of law and create a space to research and write about the historical contingencies of law, and how the law can both facilitate and alleviate inequality.”

After finishing her PhD, Kimani became a law professor at Fordham University, where she continues to teach and research issues that emerge at the intersection of law, biomedical ethics, and health for marginalized Americans.

“That South Carolina case stayed with me. It is the nexus of several vectors of inequality: race, gender, and socioeconomic status. It also had the added element of biomedical ethics, which was unfamiliar to me at that time. It led me to health law, discrimination in clinical care, disparity in health outcomes, and biomedical ethics.”

Motivated by the health law and bioethical ethics concerns raised by the South Carolina case, Kimani applied for a Robert Wood Johnson Foundation (RWJF) New Connections grant. Her RWJF-funded research looked at recently released incarcerated people, their experience with employment discrimination, their subsequent struggle to access healthcare, and how that influenced their health.

“Getting that grant opened up so many opportunities for me,” Kimani said. “It came at a time when I was an untenured junior faculty member, so getting the grant gave me the time and space to think deeply about the issues that I cared about. I’ve gotten many grants since then, but I see the New Connections grant as foundational because of the support provided by the New Connections team.”

Recently, Kimani has turned her scholarship toward patient-clinician relationships. She is lead author on a co-authored article, “Dealing with Racist Patients,” which has nearly 140,000 hits on the New England Journal of Medicine’s website.

“I call it one of medicine’s open secrets,” Kimani quips. “When patients demand a physician of a race or ethnicity different from the one assigned, their demands are often accommodated. I thought this was a curious and disturbing phenomenon and quickly found that it was much more prevalent than people cared to admit.”

The paper lays out the challenges in dealing with this racism and discrimination in clinical medicine and offers guidelines for dealing with these cases when they arise. She is currently working on a follow-up article with researchers at the University of California, San Francisco.

When patients demean healthcare workers, it poses clinical, legal, ethical, and policy challenges. According to Kimani, “demeaning patient behavior can threaten the therapeutic alliance necessary for patients to accept treatment and for healthcare workers to provide highest quality care. When directed at one member of the healthcare team, demeaning behavior can be painful and degrading and exact a heavy emotional and psychological toll. These encounters can also have a corrosive effect on healthcare workers who witness them, who may not know what to do or how to respond. Moreover, demeaning behavior can undermine team cohesion and collegiality and disrupt the learning environment, particularly when team members have differing perspectives on how these situations should be handled.”

Kimani hopes her research will be used to devise policies and protocols that balance the rights and interests of the multiple stakeholders, including patients, providers, and healthcare institutions. The goal of her research team is to share the resulting policies to hospitals across the country.

In another recent paper, “Kimani examines race-based anti-discrimination law in the U.S., comparing it to the more robust legal framework for disability discrimination.

“To be black in America means to face a series of disadvantages in almost every area of life, and the laws forbidding race discrimination have, for the most part, failed,” observes Kimani. “A fundamental problem is that, with few exceptions, anti-discrimination law requires the smoking gun of overt racism: evidence that the policy in question was intended to discriminate.”

Kimani maintains that “this is a particularly bad match with how race discrimination actually works in our society. Although overt racism remains, most disadvantages that blacks face spring from other sources, including implicit bias and structural inequality. Another mismatch between the law and reality springs from the fact that once a court finds discrimination based on race, the law has been interpreted to demand a remedy that is ‘colorblind.’ This precludes the government from taking account of race, even to make up for past state-sanctioned racial discrimination.”

Kimani, however, notes that “not all anti-discrimination laws have these flaws. The Americans with Disabilities Act, which forbids discrimination based on disability, takes a different approach entirely. Unlike race law, disability law rarely requires aggrieved parties to show that the exclusion or harm that they have suffered was intentional—a showing of disparate impact is almost always enough. Rather than focusing on malicious intent, disability law accepts the impact of even neutral actions or policies, directly confronting the ways in which social structures and institutions can cause disadvantage.”

Though Kimani acknowledges that broader anti-discrimination policy may not come out of Congress in the near future, she remains optimistic. “Today, we’re seeing an increase in the visibility and power of progressive social movements from #MeToo and #Timesup, to March for our Lives, and Black Lives Matter. I see promise for the future.”

The Details

Title: Professor of Law, Associate Director and Head of Domestic Programs and Initiatives at Fordham Law School’s Center on Race, Law & Justice, and Faculty Co-Director of the Fordham Law School Stein Center for Law & Ethics